Daily Development for Monday, October 4, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

CONSTITUTIONAL LAW; FREEDOM OF RELIGION; ZONING AND PLANNING: City's denial of special use permit to church in connection with property located in a commercial district which the City had designated for economic development did not violate church's free exercise rights under the First Amendment.

Chicago Heights v. Living World Outreach, 707 N.E.2d 53 (Ill.App. 1 Dist. 1998).

In December, 1995, the City of Chicago Heights ("City") enacted a comprehensive zoning plan with the goal of encouraging economic development in the City. As part of the plan, churches could locate in a residential zone as a matter of right, but could only locate in a B2 commercial zone with a special use permit. In January, 1996, Living World Outreach Full Gospel Church and Ministries, Inc. ("Church") purchased a former Masonic temple situated in the B2 district, and shortly thereafter applied for a special use permit. Although the City denied the special use permit on the ground that the temple was situated in an area reserved for economic development, the Church refused to abandon its activities on the property.

After citing the Church with numerous zoning violations, the City sought an injunction to prevent further violations of the ordinance. The trial court, finding that the special permit requirement impermissibly infringed on the Church's right of free exercise of religion, permanently enjoined the City from enforcing the ordinance against the Church. On appeal, the appellate court considered whether the City's denial of the special permit was arbitrary and capricious.

The appellate court noted that when zoning ordinances affect guarantees associated with freedom of religion, the ordinance in question does not enjoy the normal presumption of validity and the burden of proof shifts to the city or town. Based on a federal case regarding a church's right to free exercise of religion, the appeals court found that the City had to show that "[its] interest in adoption of the ordinance is compelling and . . . is the least restrictive means of furthering that interest." Applying this test to the facts of the case, the appeals court ruled that the City met its burden as the plan to stimulate economic development and create tax revenues justified the burden on the Church's free exercise of religion. The appeals court reasoned that the ordinance was the least restrictive means of furthering the City's interest because the Church could locate without a special permit in noncommercial districts which made up 60% of the land area of the City. Accordingly, the case was remanded with instructions to grant the injunctive relief sought by the City.   

Comment: Zoning cases in Illinois, especially those involving Chicago, have traditionally been among the most antiplanning agency of all reported cases. It is interesting to see the court get on the side of the planners in this one. Perhaps it didn't have the "taint" that the judges seem to perceive in other appellate decisions.

Comment 2:  Recall that a few years ago we had a federal act that was tilting all of these decisions in favor of the religious groups. That Act was found unconstitutional by the Supreme Court,  (City of Bourne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (1997); but Congress has substitute proposals kicking around. But Illinois had an Act of its own, the Illinois Religious Freedom Restoration Act, requiring that the government set forth a "compelling state interest" in order to justify an act that burdened the free exercise of religion. Even under this test, however, the court held that the State met its burden. (Query: would the Illinois Act survive a Constitutional test?)  

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